Saturday, March 27th, 2010

The Boss From Hell

United States v. Sabhnani, No. 08-3720-cr (2d Cir. March 25, 2010) (Wesley, Livingston, CJJ, Restani, JCIT)

The defendants, husband and wife, were convicted of forced labor, harboring aliens, peonage and document servitude, both substantive and conspiracy. The wife received an eleven-year sentence, while the husband was sentenced to forty months. The court also imposed fines and restitution and ordered the forfeiture of their home. The defendants raised several issues on appeal, not all of which are summarized here, but won relief only on a restitution issue.


The facts of this case are quite disturbing. The defendants lived very comfortably, along with their children, in a large house on Long Island from which the husband ran a successful export business. Beginning in 2002, with the help of the wife’s mother, the defendants brought two women to the United States from Indonesia to serve as household servants. Their treatment of the women was truly horrific. The wife would regularly abuse them physically – by, inter alia, depriving them of sleep, beating, starving and mutilating them – and psychologically – by insulting and threatening them and their families back in Indonesia. The husband’s role was more passive – he would report the women’s supposed violations of the house rules to his wife, then let her do the dirty work.

The situation lasted until 2007, when one of the women finally mustered the courage to escape and summon help. A search of the home revealed substantial physical evidence, including blood and physical instruments that were used to beat the women.

The Appeal

The circuit affirmed the convictions and sentences, but remanded for recalculation of the restitution.

1. The Restitution Issue

In peonage or forced labor cases, 18 U.S.C. § 1593 provides for mandatory restitution of the full amount of the victim’s losses, which it defines as “the value of the victim’s labor as guaranteed under the minimum wage and overtime guarantees of the Fair Labor Standards Act” (the “FLSA”). Here, the district court concluded that the two women worked twenty-four hours a day when the defendants were at home and eight when they were on vacation. It determined a minimum wage amount, then multiplied that by a statutorily determined factor to calculate overtime pay. After subtracting the amount that had been actually sent to the victims’ families, the court doubled the total under a FLSA provision providing for “liquidated damages” for minimum wage violations.

The defendants first argued that the victims were not entitled to overtime pay under the FLSA, and thus that the restitution amount was incorrect. The circuit agreed. The FLSA provides for overtime for employees who work more than forty hours per week, and this guarantee covers domestic workers. But the overtime provision does not apply to domestic employees who reside in the household. Reading the plain language of the statute, the court easily concluded that the victims here “resided” in the defendants’ house. The trial evidence showed that they lived in the house and did so as permanent residents for a considerable time. Moreover, the ordinary meaning of the term “residence” applies even, when the “residence” is involuntary, such as when a person “resides” in prison. Accordingly, since the victims were not statutorily entitled to overtime pay, the circuit remanded the case for recalculation of the restitution amount. It noted, however, that the residence exception does not excuse the employer from paying a live-in worker for all hours worked. Thus, on remand the district court need not deviate from its decision to award the victims pay for working twenty-four hours per day.

The defendants also contested the district court’s award of liquidated damages, arguing that the relevant FLSA provision, § 216(b) did not apply to restitution awards under 18 U.S.C. § 1593. The circuit disagreed. The restitution provision fixes the amount owed as the greater of the value to the defendant of the victim’s services or the value of the labor as guaranteed under the “minimum wage and overtime guarantees” of the FLSA. The circuit held that the FLSA’s provision for liquidated damages counted as part of the “value of the victim’s labor.” First, the restitution provision’s reference to the FLSA does not limit the value calculation to the FLSA’s provisions under which wages and overtime are calculated. Moreover, § 216(b)’s double damages provision is triggered automatically by a violation of the FLSA’s wage and overtime provisions. Third, § 216(b) is “explicitly and exclusively tied to violations of the minimum wage and overtime rules.” Thus, under § 1593, the value of the victim’s labor as guaranteed under the minimum wage and overtime guarantees of FLSA includes the liquidated damages under § 216(b).

This is so even though the liquidated damages provision can be dispensed with if the employer’s FLSA violation was undertaken in good faith. This carve-out does not mean that the liquidated damages is not part of the value of the victim’s labor that the FLSA guarantees. “The possibility that a judge may in narrow circumstances relieve an employer of its obligations to pay [does not alter] Section 216’s general command that liquidated damages be paid.”

2. Other Sentencing Issues

A. The court rejected the wife’s contention that enhancements for both “serious bodily injury” and the use of a “dangerous weapon” constituted impermissible double counting.

B. Both defendants contested the “vulnerable victim” enhancement, arguing that because Congress took into account a victim’s vulnerability in enacting the criminal statutes under which they were convicted, the guideline under which they were sentenced, § 2H4.1, implicitly incorporated that vulnerability, and thus the victims here were not “unusually vulnerable.” They were, rather, the “prototypical victims Congress aimed to protect.”

The circuit disagreed, even though it agreed that the congressional findings behind the statutes included findings that persons with some of the same characteristics as these victims were more likely to be victims of the crimes of forced labor, peonage and document servitude. But neither the offense guideline nor the vulnerable victim guideline supported the defendants’ argument. The offense guideline itself specifies no victim-related factor that, under the commentary to the vulnerable victim guideline, would preclude application of the enhancement.

3. Trial Issues

A. The appellate court rejected, inter alia, the defendants’ claim that the district court should have granted their motion for a change of venue due to prejudicial pretrial publicity. The publicity was driven largely by coverage of court proceedings. Thus, the prosecution’s reported comments, some of which were inflammatory, were proper given the litigation context in which they were made. Moreover, the press also reported on comments of the defendants’ attorneys. Nor was the press coverage “so pervasive and prejudicial as to have created a reasonable likelihood that a fair trial could not be conducted.” Finally, there was a searching voir dire of prospective jurors that the defendants did not object to as inadequate.

B. The husband challenged the district court’s jury instruction on aiding and abetting which, in one place, indicated that liability might attach for a “failure to act.” This was, arguably, error, since none of the charges on which he was convicted was predicated on a failure to act, and he had no common law duty to act. Omissions may serve as the basis for criminal liability only if there is an affirmative duty to act, and this is equally true for aiding and abetting. But here, the complained of language was
“not inaccurate” – it was “simply extraneous to this case.” And the “charge as a whole” repeatedly made clear that the jury had to find that the husband “by some act” sought to make his wife’s crimes succeed.

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